Children’s voices
Date: 11 December 2009
Authors: Geraldine Morris
Issue: Vol 159, Issue 7397
Categories: Features, Family
Recent newspaper reports of Wall LJ’s ruling to refuse a mother’s application to appeal against a decision that her son should live with his father have highlighted the issue of the weight given to a child’s wishes and feelings.
The application arose from a decision of Judge Bond at Bournemouth District Registry in November to transfer residence from the mother to the father following evidence from a child psychiatrist and the child’s guardian that the child is suffering “emotional harm” by being estranged from his father.
The judgment of Wall LJ is not yet available (and one suspects may be the subject of a further appeal) but a report in the Telegraph (20 November 2009) describes the the boy as not wishing to leave his mother and that he “believes his father has ‘ruined’ his life”.
Legislative provision
When making an order under s 8 of the Children Act 1989, the court must have regard to the welfare checklist set out at s 1(3). In relation to the child’s views the relevant provision is at s 1(3)(a) and states that the court must consider: “the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding).”
There is some authority that by starting the welfare checklist with the issue of the child’s wishes and feelings, the intention was to give s 1(3)(a) greater weight (see the Court of Appeal decision in Re P (minors) (wardship) [1992] 2 FCR 681). On the other hand the welfare checklist contains six other factors to be taken into account including:
l the child’s needs;
l the likely effect of any change;
l any harm which the child has suffered or is likely to suffer; and
l how capable each of the child’s parents is in meeting the child’s needs.
The general approach of the courts has been to balance each of those factors and give varying levels of weight to each dependent upon the facts of the case. In Re P (Minors) (Wardship: Care and Control) [1992] 2 FCR 681, Butler Sloss LJ commented that the “welfare of the child may from time to time and does in this case diverge from the wishes of the children”.
Article 8
A further factor is a parent’s rights under Art 8 of the European Convention on Human Rights (the Convention). In the European Court of Human Rights case of C v Finland (Application No 18249/02) [2006] 2 FCR 195 the lower court had placed exclusive weight on the children’s views—effectively giving the children an unconditional veto power. Furthermore, it did so without holding an oral hearing and did not invite the parties to address the matter or consider any further evidence or expert opinion. It was held on that basis that there had been a violation of Art 8 of the Convention.
Methods of ascertaining wishes
The child’s views may be ascertained from a variety of sources. In M v M (1976) 7 Fam Law 17 the child’s wishes were expressed to a teacher. Letters from a child may be approached with caution due to the potential influence of a parent (see Doncheff v Doncheff (1978) 8 Fam Law 205). More usually in private children proceedings the child’s views will be expressed via the Cafcass officer.
Private law proceedings contrast with public children proceedings where the child’s interests are promoted by the child’s guardian and legal representative.
A child may apply for leave to participate as a party in private law proceedings under the provisions in r 9.2A of the Family Proceedings Rules 1991 but such applications remain unusual.
In Re W (children) (leave to remove) [2008] 2 FCR 420 Charles J suggested that such meetings, while under debate, should be subject to the following considerations:
l the format, structure, content and purpose of the meeting;
l the role of the judge;
l the participation and presence of others in or at the meeting;
l what is to be passed on to anyone not present or represented at the meeting;
l how matters asserted by a child to the judge are to be tested;
l whether anything that is not passed on to the parties can be taken into account by the judge; and
l what explanation is to be given to the child before and after the meeting.
Geraldine Morris, solicitor & technical editor of Butterworths Family Law Service
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